The Democrats’ “divestment or impeachment” bill aimed at Trump is futile but not stupid

AllahpunditPosted at 6:41 pm on December 15, 2016

I want to reply to Ed’s post earlier (which you should read now if you haven’t) on whether Elizabeth Warren’s new bill, which would treat any violation of federal conflict of interest laws by the president as a “high crime or misdemeanor” for impeachment purposes, is a “stupid and futile gesture,” as Ed put it. There’s no doubt that it’s futile. Even if it were constitutional, how would you pass it? You’d need two-thirds of both houses of Congress to override Trump’s inevitable veto, which means dozens of Republican votes in the House and nearly 20 Republican votes in the Senate. Ain’t happening, no matter how righteous the cause of preventing the president from enriching himself and his family through sweetheart deals is.

But it’s probably not constitutional, as Ed notes. Warren’s fact sheet describes the bill as an attempt to implement the Emoluments Clause, but her bill applies to all presidential financial conflicts of interest and the Emoluments Clause, er, doesn’t. It applies only in the narrow case of “emoluments” paid by a foreign state (or one of its holdings) to a federal official. The dispute over whether Trump will soon be in violation of the lease for his hotel in D.C., for instance, has nothing to do with the Emoluments Clause. For that reason alone, Warren’s bill would probably be shot down as an overbroad reading of the Clause.

If she were to limit her bill only to conflicts arising from business with a foreign state, that would be a more interesting legal case. The bill would probably be shot down anyway in that case as a violation of separation of powers, on the theory that Congress has no constitutional authority to set ethical standards for the head of a co-equal branch. But you never know: The Emoluments Clause explicitly says that emoluments from a foreign state are forbidden “without the Consent of the Congress.” The Clause explicitly acknowledges a role for the legislature in policing them. If that question came before the right judge, particularly one who dislikes the trend of presidential power expanding at Congress’s expense over the last few decades, would that judge read the Clause broadly to let Congress place prospective limits on the president’s ability to receive emoluments or to designate them preemptively as “high crimes”? Is there an exception to separate of powers for emoluments, in other words, just as the president’s control of the military is (er, theoretically) limited by Congress’s power to declare war? It’s a longshot but not a no-shot.

So the bill can’t pass, and even if it could, it’d probably be shot down. In fact, since Congress’s consent is required by the Constitution before Trump can lawfully accept emoluments from foreign states, the bill is silly to begin with. If there are enough votes to pass something like this, there should be enough votes for Congress to block any such emolument Trump receives and to threaten him with impeachment if he refuses to disgorge it. Why does Warren need a bill to give Congress the power to do something that the Constitution already empowers her branch to do, at least vis-a-vis money paid to Trump by foreign governments?

But that gets to why I disagree that this is stupid. The bill’s not designed to pass, it’s designed to put Republicans in a political jam and to raise awareness on the left about Trump’s conflict of interests. Even though Congress has little power to stop the president from profiting from his office, the bill is good PR for the idea that financial conflicts are so grave a misdeed that impeachment should be on the table for them. Trump has a big megaphone to propagate the idea that self-enrichment isn’t some huge problem that everyone should hyperventilate over. Warren’s bill is a counter to that, that not only is it a big deal, the public should be so outraged about it that it deems removal from office as suitable punishment. For Warren’s purposes, it doesn’t matter whether a law like this would be constitutional, it matters only whether it would be seen as virtuous and necessary. Essentially, she and Trump are wrestling over which way the Overton window should move on stuff like this. She’s preparing the political battlespace for an eventual fight with Republicans over what should be done if one of Trump’s businesses ends up being conspicuously massively enriched as part of some obvious pay-to-play scheme.

There’s lots of political hay to be made potentially. A few hours before Warren announced her bill, this story appeared in the Wall Street Journal:

Donald Trump’s overseas business partners say their companies have already benefited, or expect to gain, from their connection to the president-elect, with some hoping to build new projects under his brand and others seeing the value of their holdings rise…

“With him becoming a more strong, famous brand, that should add value to our golf course,” said Hussain Sajwani, a Dubai-based property developer building thousands of new homes in the emirate around two Trump-branded golf courses, in a recent interview. The Trump organization will manage the courses, and add its brand name to some of the villas. Mr. Sajwani’s Damac Properties is developing the courses and the properties.

Already, Mr. Sajwani said, “we see more interest, more inquiries into the project.”

No doubt. Beyond all of that, the bill exploits the awkward position that Republican congressmen are in by forcing them — in theory — to take a position on the record about Trump’s conflict of interests. Do they agree that sweetheart deals for the president, including deals arranged by foreign governments, are no big deal? Will they be willing to put their names to that in a floor vote by opposing her bill, with Democrats well positioned to use those votes against them in the next election if/when a major scandal related to some financial deal Trump is involved in eventually erupts? Is Mitch McConnell prepared to table the bill for that reason, because he’s terrified of how his caucus might vote if presented with a basic ethical question? And would President Trump actually veto a bill that required him not to get rich(er) off of his own election as the people’s servant?

Warren and her colleagues surely expect that the bill will end up bottled up and never voted on, but that’s decent ammo too: Why won’t Mitch McConnell hold Donald Trump accountable for his corruption? is a decent rallying cry for a midterm election aimed at a Democratic base that’s already frightened and pissed off. The more Dems can make Congress look complicit in Trump’s worst excesses, the better their odds in 2018 — and the more grateful liberals might be in 2020 if Warren runs for president. To the extent that that’s what she’s trying to do here, I don’t think the bill is stupid.